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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Criminal Action 2:13-cr-0053

Judge Graham

BRANDON L. HARDESTY

REPORT AND RECOMMENDATION

The United States of America and defendant Brandon L. 

Hardesty entered into a plea agreement whereby defendant agreed to 

enter a plea of guilty to Count One of an Information charging him 

with receipt of visual depictions of child pornography in violation of 

18 U.S.C. §§ 2252(a)(1) and (b)(1). Defendant also agreed not to 

contest the forfeiture count. On March 22, 2013, defendant, 

accompanied by his counsel, appeared for an arraignment. Defendant 

consented, pursuant to 28 U.S.C. §636(b)(3), to enter a guilty plea 

before a Magistrate Judge. See United States v. Cukaj, 2001 WL 

1587410 at *1 (6th Cir. 2001) [Magistrate Judge may accept a guilty 

plea with the express consent of the defendant and where no objection 

to the report and recommendation is filed]; United States v. Torres, 

258 F.3d 791, 796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261, 

263-69 (5th Cir. 1997); United States v. Ciapponi, 77 F.3d 1247, 1251 

(10th Cir. 1996). Defendant also waived his right to an indictment in 

open court and after being advised of the nature of the charge and of 

his rights. See F.R. Crim. P. 7(b). 

During the plea proceeding, the undersigned observed the 

appearance and responsiveness of defendant in answering questions. 

Based on that observation, the undersigned is satisfied that, at the 

time he entered his guilty plea, defendant was in full possession of 

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his faculties, was not suffering from any apparent physical or mental 

illness, and was not under the influence of narcotics or alcohol. 

Prior to accepting defendant’s plea, the undersigned 

addressed defendant personally and in open court and determined his 

competence to plead. Based on the observations of the undersigned, 

defendant understands the nature and meaning of the charge contained 

in the Information and the consequences of the plea to Count One. 

Defendant was also addressed personally and in open court and advised 

of each of the rights referred to in Rule 11 of the Federal Rules of 

Criminal Procedure. 

Having engaged in the colloquy required by Rule 11, the 

Court concludes that defendant’s plea is voluntary. Defendant 

acknowledged that the plea agreement signed by him, his attorney and 

the attorney for the United States and filed on March 7, 2013,

represents the only promises made by anyone regarding the charge in 

the Information. Defendant was advised that the District Judge may 

accept or reject the plea agreement and that, even if the Court 

refuses to accept any provision of the plea agreement not binding on 

the Court, defendant may nevertheless not withdraw his guilty plea. 

Defendant confirmed the accuracy of the material aspects of 

the statement of facts supporting the charge. He confirmed that he is 

pleading guilty to Count One of the Information because he is in fact 

guilty of the offense charged in that count of the Information. The 

Court concludes that there is a factual basis for the plea. 

The Court concludes that defendant’s plea of guilty to 

Count One of the Information is knowingly and voluntarily made with 

understanding of the nature and meaning of the charge and of the 

consequences of the plea. 

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It is therefore RECOMMENDED that defendant Brandon L. 

Hardesty’s guilty plea to Count One of the Information be accepted. 

Decision on acceptance or rejection of the plea agreement was deferred 

for consideration by the District Judge after the preparation of a 

presentence investigation report. 

In accordance with S.D. Ohio Crim. R. 32.1, and as 

expressly agreed to by defendant through counsel, a written 

presentence investigation report will be prepared by the United States 

Probation Office. Defendant will be asked to provide information;

defendant’s attorney may be present if defendant so wishes. 

Objections to the presentence report must be made in accordance with 

the rules of this Court. 

If any party seeks review by the District Judge of this 

Report and Recommendation, that party may, within fourteen (14) days, 

file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and 

Recommendation, and the part thereof in question, as well as the basis 

for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after 

being served with a copy thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object 

to the Report and Recommendation will result in a waiver of the right 

to de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of 

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Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981).

March 22, 2013 s/ Norah McCann King 

Date Norah McCann King

 United States Magistrate Judge

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